Bankruptcy Law Commons^™

Legislative Attempts To Address Asbestos Litigation, Steven Kazan

Pepperdine Law Review

No abstract provided.

Asbestos Legislation Ii: Section 524(G) Without Bankruptcy, Francis E. Mcgovern

Pepperdine Law Review

No abstract provided.

Introduction: Bankruptcy, Debt & Gaming Law Symposium, Jennifer L. Carleton

UNLV Gaming Law Journal

An introduction to the symposium issue on Bankruptcy, Debt & Gaming Law.

The Long And Winding Road: State Sovereign Immunity's Effect On Gaming License Revocation For The Casino Debtor, Christopher M. Humes

UNLV Gaming Law Journal

One of the most vital and contentious proceedings between a casino debtor and a regulatory agency is a post-petition license revocation hearing. Much debate exists about whether the license qualifies as property of the estate and whether the regulatory agency can be exempted from the protections inherent in the Bankruptcy Code due to the use of police and regulatory power. However, maybe the most contentious and impactful debate is whether the regulatory agency is free from the bankruptcy court’s jurisdiction due to the Eleventh Amendment’s guarantee of sovereign immunity.

At the center of the tension concerning sovereign immunity lies 11 …

When Gaming Goes Heads Up With The Bankruptcy Code: Unique Restructuring Issues For Gaming Businesses In Difficult Economic Times, Dawn M. Cica, Laury M. Macauley

UNLV Gaming Law Journal

The intersection of gaming and bankruptcy law has long presented legal conflicts that have never been easily reconciled. This problem has been exacerbated in recent years by the current global and national economic turbulence that has greatly impacted the casino gaming industry and has led to a sizeable increase in the number of businesses using bankruptcy to restructure and/or liquidate assets.

Undocumented Debtors, Chrystin Ondersma

University of Michigan Journal of Law Reform

Undocumented immigrants in financial distress are barred from seeking many forms of assistance. Bankruptcy is one tool that is, in theory, available to undocumented debtors because legal status is not a prerequisite to bankruptcy relief. This Article explores undocumented debtors' interactions with the bankruptcy system. Undocumented debtors face both formal and informal barriers to bankruptcy filing, including fear of deportation, misinformation, and the legal requirement that the debtor produce financial records. It is both possible and desirable to ease many of these barriers. Bankruptcy relief facilitates the rehabilitation of debtors in financial distress, contributes to the economic well-being of the …

Mortgage Wars Episode V - The Empiricist Strikes Back (Or Out): A Reply To Professor Levitin's Response , Mark S. Scarberry

Pepperdine Law Review

Professor Adam Levitin has responded to my recent symposium article critiquing proposed congressional legislation that would allow modification (including strip down) of home mortgages in Chapter 13 bankruptcy. A portion of my Critique criticized his empirical studies concerning the likely effect of the proposed legislation on mortgage interest rates and availability, and also criticized the arguments he has made in support of the proposed legislation. The Critique did note, however, that the insight involved in conceiving of such empirical studies was impressive. Surprisingly, Professor Levitin’s Response fails to deal with the substantial case authority discussed in my Critique. He treats …

Back To The Future With Chapter 13: A Response To Professor Scarberry, Adam J. Levitin

Pepperdine Law Review

Professor Mark Scarberry has put forth a formidable critique of my empirical study of mortgage market sensitivity to bankruptcy modification risk. As this response shows, however, his critique does not hold up under scrutiny. Professor Scarberry argues that my study design is invalid because, as he reads the current state of the law, cramdown is virtually impossible. Therefore, he contends, we should not expect markets to exhibit sensitivity to cramdown risk, so no policy conclusions can be derived from my finding of market insensitivity. Regrettably, Professor Scarberry overreads the state of the law. The law is in fact unsettled, and …

Contingent Capital With Sequential Triggers, Wulf A. Kaal, Christoph K. Henkel

San Diego Law Review

Contingent capital has great potential to help make systemically important financial institutions (SIFIs) safer, minimize systemic risk, and help avoid another financial crisis. United States policymakers may not have fully utilized the potential of contingent capital. A draft by the European Union (EU) Commission already suggests the mandatory issuance of contingent capital securities in the resolution phase of systemically important banks in Europe. The Dodd-Frank Wall Street Reform and Consumer Protection Act mandates a study on the feasibility of contingent capital. This Article proposes the use of contingent capital with a sequential trigger as an early preventative tool and as …

Bankruptcy Federalism: A Doctrine Askew , Margaret Howard

Pepperdine Law Review

No abstract provided.

Keeping Score When Bankruptcy Principles And The Federal Anti-Assignment Act Collide: Government Contractors' Options Concerning Executory Contracts, Tanya M. Kiatkulpiboone

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Software Licenses, Source Code Escrows, And Trustee Powers Under 11 U.S.C. §365, James E. Raymond

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Mesa Airlines, Brittany Brent, Lindy Harris

Chapter 11 Bankruptcy Case Studies

No abstract provided.

The Bankruptcy Of Golfers' Warehouse, Inc.: A Lesson In How To Sell A Business In Chapter 11, Briton Collins, Will Smith, David Choi

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Independence Air, Kara West, Patrick Woodside

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Lambuth, Jennifer Crake, Zackarij Gradner, Scott Mcleod

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Movie Gallery, Cornell Kennedy, Phylinda Ramsey, Kevin Rayburn

Chapter 11 Bankruptcy Case Studies

No abstract provided.

In Re Jazz Photo Corp., Archie Carden, Cory Swainston

Chapter 11 Bankruptcy Case Studies

No abstract provided.

In Re Adelphia Communications Corp., Hilari Sheffield, Adam Smith

Chapter 11 Bankruptcy Case Studies

No abstract provided.

New Era Bankruptcy, Holly N. Mancl

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Reader's Digest, Walter Machnicki

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Three Approaches To Applying 11 U.S.C § 546(E)’S “Safe Harbor” To Private Lbos, Shlomo Lazar

Bankruptcy Research Library

(Excerpt)

The Bankruptcy Code gives a trustee and a debtor-in-possession the authority to avoid fraudulent transactions. However, 11 U.S.C. § 546(e) limits the trustee’s avoiding powers by providing a safe harbor for “settlement payments.” Generally, a “settlement payment” is a payment of cash or securities made to complete a securities transaction. For example, money that an individual pays to a stockbroker to buy publicly traded shares is a settlement payment. A recent issue that has arisen is whether payments made to former shareholders in connection with a private leveraged buyout (LBO) constitute a “settlement payment.”

Depending on which jurisdiction a …

The Ponzi Scheme Presumption And Fraudulent Conveyances In The 21st Century: It’S Not Just Black And White, Gabriella B. Zahn

Bankruptcy Research Library

(Excerpt)

Section 548(a)(1)(A) of the Bankruptcy Code (the “Code”) allows the trustee of a bankruptcy estate to avoid a transfer made by the debtor “with actual intent to hinder, delay, or defraud” an entity to which the debtor was or became indebted, as long as the transfer was made within two years of filing. Because it is difficult to prove that a transfer was made with such actual intent, courts have applied the so-called “Ponzi scheme presumption.” In cases involving conveyances in Ponzi schemes, the “Ponzi scheme presumption” allows the court to assume that a transfer was made with the …

In Re J.J. Re–Bar Corp.: The Application Of The Anti-Injunction Act, Eric Dostal

Bankruptcy Research Library

(Excerpt)

The Anti–Injunction Act is a provision of the U.S Code that prohibits any court from impeding the Internal Revenue Service from collecting an assessed tax. The Circuits have applied the Anti–Injunction Act to bankruptcy proceedings in two different ways. When the IRS seeks to assess a tax against a corporate fiduciary of a bankrupt corporation, as when the IRS tries to collect a penalty associated with unpaid payroll taxes, the Circuits have held that the Anti–Injunction Act allows the IRS to collect the funds it is entitled to without any interference. However, when the IRS attempts to collect unpaid …

Discrimination In Hiring Based On Past Bankruptcy Filing Allowed For Private Employers, Megan Quail

Bankruptcy Research Library

(Excerpt)

Section 525 of the Bankruptcy Code protects employees who currently are or have previously been in bankruptcy from discrimination. It contains two subsections. Subsection (a) states that government employers may not deny employment to, terminate the employment of, or discriminate with respect to employment against a person who has filed bankruptcy solely because of that filing. Subsection (b) provides that no private employer “may terminate the employment of, or discriminate with respect to employment against” individuals for declaring bankruptcy. The salient difference is that the section applying to private employers does not mention denial of employment in its list …

Considerations For Private Equity Firms When Utilizing Chapter 11 New Value Deals, Alexandra Wilde

Michigan Business & Entrepreneurial Law Review

The new value exception to the Chapter 11 absolute priority rule provides a narrow avenue for equity holders to retain an equity interest in a reorganized company over the objections of senior creditors and interest holders. With the increasing number of Chapter 11 reorganization filings by private equity owned companies, private equity firms may be interested in exploring ways to retain their equity ownership in the debtor company. This Note explores the unique implications a private equity firm may encounter when attempting to utilize the new value exception as a last resort to maintain ownership in a debtor company. Part …

The Bankruptcy Of D & K Aviation, T J. Hatter, Maurice Echols, Michael Mason

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Solyndra, Brandon Brewer, Matthew Kinsey, Anthony Mendenhall

Chapter 11 Bankruptcy Case Studies

No abstract provided.

Chapter 11 Reorganization And The Fair And Equitable Standard: How The Absolute Priority Rule Applies To All Nonprofit Entities, Pamela Foohey

Articles by Maurer Faculty

In recent years, nonprofit entities increasingly have sought bankruptcy protection. Though the Bankruptcy Code does not prevent nonprofits from reorganizing, Chapter 11 was designed for and applies best to for-profit businesses. This creates challenges for courts evaluating a nonprofit’s reorganization plan. This Article focuses on one crucial aspect of a court’s evaluation — the fair and equitable standard, a necessary, but not sufficient condition of which is satisfaction of the absolute priority rule.

The few courts addressing absolute priority claims in nonprofit reorganizations have held that the rule is categorically inapplicable to nonprofit entities except in limited circumstances. These courts …

The New Danger Of Being Fired: Section 525(B)’S Disproportionate Effect On Older Workers And A Call To Amend, Jina Kim Yun

Northwestern Journal of Law & Social Policy

This Note explores an increasingly perverse effect of an anti-discriminatory provision of the Bankruptcy Code on numerous Americans who have declared personal bankruptcies after the recent economic recession of 2007. Under § 525(b) of the Bankruptcy Code, a private employer is not prohibited from barring a former debtor from prospective employment based on a past insolvency. This provision has had an immense impact on the large number of former debtors seeking the fresh start that bankruptcy law is meant to provide. With the dramatic increase in the number of personal bankruptcies, this Note argues that such an impact is overly …